* See: "Augean Stables".

06/03/08

The familiar crowds gathered outside the appeals court to hear the latest round in the Karsenty-Enderlin slugfest in the Palais de Justice in Paris. Middle East Correspondent of long-standing, Charles Enderlin, and his employers, France2 have taken Philippe Karsenty, maverick director of Media-Ratings to France’s notorious Defamation Court for “striking at their honor and estimation.” Karsenty published a little-noticed article at his website in 2004 calling on both Enderlin and Arlette Chabot (director of the News Services at France2) to resign for having run staged footage of Muhammad al Durah on the news. This picture – ruen again and again on Muslim and European TV – arguably stands at the origin (if not the cause) of both the Second Intifada, for which it became the icon, and a larger wave of hatred of Jews around the world that some call The New Anti-Semitism or La nouvelle Judéophobie.

In a surprising decision that contradicted the advice of the Procureur de la République (a supposedly neutral legal expert who advises the court), the lower court found Karsenty guilty of defamation on October 16, 2006. Karsenty immediately appealed, and in Judge Laurence Trébucq’s Appeals court the case has taken surprising turns. On September 17, 2007, she ordered France2 to show their Palestinian cameraman’s “rushes” – his raw footage from the day. This crucial evidence which France2 had refused to release to either the public or to the Israelis, lay at the heart of Karsenty’s defense since, although he had not seen them himself, others, including three independent French journalists reported that they were filled with staged scenes.

The November showing drew eager crowds, including journalists from England, Germany, the United States, Israel and even Dubai. Although both Enderlin and Karsenty debated the meaning of the tapes, the court reserved formal presentation of arguments for Wednesday, February 27. That day, a hot, contentious, seven-hour long hearing pitted an extremely prepared Philippe Karsenty and his lawyers against an nonchalant Charles Enderlin and his sarcastic lawyers went on until almost 10 PM.

First up was a discussion of the report carried out by the French court’s ballistics expert, Jean-Claude Schlinger, which found no evidence of a) bullets from the Israeli position, b) 45 minutes of constant shooting, and c) the impact of Israeli military ammunition on the bodies of the two al-Durahs. His conclusion: “It is very possible, therefore, that it is a case [in which the incident was] staged.”

For most of the afternoon Karsenty dominated the discussion. His Power-point presentation repeatedly embarrassed France2. At one point even the News Director, Arlette Chabot, came to the stand to defend her organization. Judge Trébucq’s impatience with both Enderlin’s evasive answers and Chabot’s straw men, put the advantage firmly on Karsenty’s side. Then, in the late innings France2’s team struck back. Their star lawyer, Maitre Szpiner (Chirac’s lawyer, also considered the best in France), unleashed a volley of sarcasm and scurrilous innuendo that brought derisive smiles even to the face of the two adjunct judges. (French civil courts have three judges and no jury.) Following him, the avocat général – the Appeals Court version of the Procureur – recommended that the judges affirm the initial conviction against Karsenty.

While such an opinion would normally weigh heavily on a court which most often confirms the original decision – and had initially discouraged me greatly when the avocat général and Szpiner spoke in succession – this case is anomalous in every sense of the word, and therefore, unpredictable. Judge Trébucq has shown an exceptional level of interest in the case, and details of her behavior including a few slips, suggest that she has her own independent position in all this. A decision is scheduled for May 21, almost three months hence.

Before the court opened the now-familiar crowd of al-Durah aficionados had gathered and pressed around the door of the tiny courtroom. As the time approached, the court officers found it impossible for the judges or court officials to pass by. As repeated appeals and commands to back up produced no results, the officers began to sound like school teachers threatening their students, making them still effective. “Les français n’aiment pas les règles,” someone mumbled approvingly. Only some young officers, arms locked, physically pushing the crowd back succeeded in opening up some space.

They let in a few people. I assume I’ll get in. A journalist pushed up behind me. “I’m press!” he insisted. “So am I,” say I who had just received my PJMedia card via overnight express the day before. “Show me your card,” says he. When I show it to him he snorts, “that’s not a press card,” and tries to push through. Neither of us got through and the guards tell us the case has begun. I stand there thinking, “I just flew transatlantic to attend this trial and I may miss it… this is impossible.”

Eventually the case was moved to another, more ample chamber where, more than an hour late, we began the proceedings at 3pm. There’s room for everyone, vindicating those who waited with dignity. First up, questions about the admissibility of certain evidence, most notably the work carried out by a French ballistics expert, commissioned by Karsenty, which found no evidence of a) bullets from the Israeli position, b) 45 minutes of constant shooting, and c) evidence of the impact of Israeli military ammunition on the bodies of the two al Durahs. After a long recess, the court decided to admit the evidence but not take testimony from its author.

At last Philippe Karsenty delivered his PPP. Karsenty’s strategy aimed at showing how unreliable the cameraman Talal abu Rahmeh was, and how inappropriate the confidence that Charles Enderlin placed in him. Showing him shooting Pallywood (Molotov Cocktail Kid), detailing his misrepresentations and lies, and using heretofore unseen segments of interviews Esther Schapira conducted with both Talal and Enderlin, Karsenty Enderlin expressing “100 percent confidence” in his cameraman as a first rate professional journalist. At several points the judge, visibly impressed by what she saw, questioned Enderlin directly. After Karsenty had shown the indisputable Pallywood scene of the “hole in the wall,” he then showed a clip of how Enderlin and France2 had used the final sequence of the man firing into the empty room as real news footage in a broadcast the following day.

“One gets a little bit this impression that something is not quite as it should be,” commented Judge Trebucq with exquisite understatement. Then, turning to Enderlin: “Would you care to comment on that?” His answer was classic Enderlin and one of the main themes of the afternoon: “They are all professionals, their work is used by organizations throughout the world. And I can assure you,” he said in response to the evidence of the footage that the Palestinians shoot in the air for effect, “that they don’t just fire off their guns for nothing.”

He pursued his line of argument. Talal is a completely reliable journalist “from whom we have never had any problem.” I can assure you that if the Israelis had even a hint of suspicion that Talal was staging material – especially this – they would have withdrawn his press card and confined him to Gaza at the very least.” (In a subsequent conversation with the head of the Government Press Office, I learned that indeed Talal had his press credentials withdrawn specifically because of his behavior in the al Durah affair.) “If Talal were a member of a terrorist organization or working with them,” Enderlin continued, “you can be sure that the Shin Bet would have a file on him, but his record is white as snow.”

Indeed one of the major arguments the France2 team used repeatedly that day focused on the Israeli silence. I can guarantee you, Enderlin intoned, that the Israelis took away the journalist accreditation of all the Palestinian stringers once the Intifada happened [untrue]… I can assure you that the Israelis would not deprive themselves of any occasion to defend their position.

The weight of the Israeli silence in the French courtroom became so heavy that even the judge, in genuine puzzlement, asked Karsenty, “Why don’t the Israelis argue their case? Why haven’t they said anything?” Karsenty, who has been disappointed by the passivity of the Israelis in the face of this problem, responded as well as he could. “At the beginning, they were trying to negotiate with the Palestinians, and it doesn’t help to accuse your desired partners of having faked the death of a cherished martyr.” “Not possible,” responded Enderlin, “I wrote a book on the matter, and the Israelis didn’t negotiate with the Palestinians until December.” Intervened Judge Trebucq, “You don’t have to be formally negotiating in order to have your behavior influenced by the effort to negotiate.”

Karsenty pursued his difficult explanation for the Israelis behavior: “They didn’t realize how bad it was.” “Ridiculous,” shot back Enderlin, the man who assured me that his modest broadcast had not actually had that big an effect, “it was obvious to everyone how big an impact this story had.” In fact, Israelis repeatedly express astonishment at why Jews from the diaspora care about setting this record straight when they just wish it would go away. When they realize how powerful the impact not only on Israel, but on Jews around the world, they express surprise. As Karsenty later explained to the judges, “The day after al Durah, one of my employees came into the office and challenged me, ‘Look at what your army has done, murdering an innocent child!’”

That’s the core of the blood libel: a Jew deliberately murders an innocent child, and all Jews everywhere are held responsible. Five days later crowds of immigrant Muslims and European leftists would hold a huge banner aloft in Place de la République with a Star of David = Swastika = picture of the al Durahs behind the barrel, shouting “Death to Israel! Death to the Jews!”

Few things illustrate better the problems faced by outsiders trying to understand the Middle East than this dialogue of the deaf about the Israeli silence. For any outsider it’s obvious that anyone unjustly accused would respond to those accusations with indignation, that if an army were accused of mercilessly murdering civilians based on a staged scene, that army would defend its honor. And for Europeans, fed on images of brutal and oppressive Israelis, the idea that they would not retaliate against both the Palestinians and the media if they believed they were wronged, seems unimaginable. It is Enderlin’s strongest weapon, and it clearly it impressed the judges. Who would imagine that Israeli official circles felt somewhat like Kafka’s Joseph K., accused of crimes according to rules of evidence they do not understand, presumed guilty, incapable of articulating an effective response, demoralized and paralyzed by the relentlessness of the attacks.

Karsenty’s presentation, which at times went into rather close detail, seems to have engaged Judge Trebucq. She asks for repeated clarification, precisions on the date of the film, and although on several occasions she told Philippe to skip over certain written elements of his presentation, she allowed all and lengthy video passages to play with his commentary. If she has shown a great deal of impatience with him in the past, here, even her impatience seems sympathetic. And Karsenty, as opposed to previous occasions, mostly followed her wishes and moved on without protest.

After Karsenty’s presentation, the court viewed a 10-minute video prepared by France2. Slick, unconcerned with the details of date and time and provenance, all of which Karsenty carefully supplied, the video glossed over the problematic evidence with breezy lines rather than substance. Responding to the laughter that greeted Endlerlin’s explanation that the standers-by are yelling “The boy is dead, the boy is dead” before he’s even been hit, the movie repeats his assertion with confident authority: “which in Arabic, means, ‘the boy is in danger of dying.’”

The France2 video is actually incoherent. Much time is given to proving that there were more than one cameraman on site that day, an argument that works in favor of the thesis of staging since, if so many cameramen were there, why was Talal the only one to get footage of this 45 minute ordeal. Enderlin even offers a new “take” on why Talal didn’t get the shots of the evacuation. “His batteries ran out, he had to change them, and by the time he did, the ambulance had already taken them away.”

(This is a new claim. In order to explain why Talal only got one minute of a 45-minute ordeal of “bullets like rain,” Enderlin had previously told me that Talal’s batteries ran out, not that he replaced them. On the face of it, the argument is absurd. How many seconds does it take a practiced cameraman to change batteries? How long does it take an ambulance to evacuate a dead child and a badly wounded father?)

When the video presentations are over, the Judge allows Enderlin and Karsenty to make a personal statement of no more than 10 minutes. Enderlin repeats his main points – total confidence in Talal, if the Israelis knew it was a fake they’d have done something, and the father Jamal is ready to have the boy exumed to prove it is his son and “once and for all put an end to this nonsense.” He then sits down without addressing a single concrete challenge posed by Karsenty. (Digging up the boy and doing tests that show him to be Jamal’s son will prove only limited points: that, it is indeed Jamal’s son buried there, not when or where or by whom he was killed. Worse, if it’s Jamal’s son, this increases the odds that the Palestinians killed him after the footage was shot.)

Philippe, on the other hand, uses his full time to articulate his position. Questions follow, which is as close to a cross-examination as this court ever gets. In this period, Karsenty has to field some heavy questioning in which he finds himself drawn farther and farther into making claims that strike even the judges as impossible. Karsenty claims that the boy in the hospital with the gaping stomach wound and the guts hanging out is not the boy behind the barrel. Enderlin and his lawyers jump on him; even the judge seems disturbed: “Who is the real Muhammad al Durah: the one in the hospital or the one behind the barrel then?” “I don’t know,” replies Karsenty. “This is an investigation?” asks Szpiner rhetorically.

How much of this footage is staged? “All of the scenes from Netzarim that day are staged,” claims Philippe. Again, even the judge finds this hard to believe. “So AP is has also sold out (ils sont vendus aussi)?” she asks him sharply, showing her increasing tendency to find that Karsenty’s claims border on a kind of conspiracy theory. “No,” Philippe explains, “the AP cameraman is Palestinian; the agency, like Enderlin and France2, are dupes.” As he explains the workings of Pallywood to the judge, one begins to understand the enormity of the claim (and the difficulty for someone who assumes a reasonably responsible media to imagine), that our news media would consistently clean up cheap Palestinian fakes and present them as news. And if not on purpose – are they vendus? – then just how incompetent can they be?

In the end, one got the sense that the very incredulity of the court in the face of Karsenty’s claims about Pallywood and its pervasiveness explained how Pallywood could happen and continue. France2’s basic position was: “We are a reputable firm with a world-wide reputation; Charles Enderlin is a universally respected and admired journalist and author; Karsenty is a nobody who has no business criticizing us.” Although ready to entertain specific criticism about France2 and Enderlin, the judge seemed incapable of understanding how both this incident, and the larger shape of Middle East coverage could be so fundamentally manipulated. “Was King Abdullah part of the conspiracy when he went to visit Jamal in the hospital in Jordan?” she asks incredulously. This very incredulity makes Pallywood possible: since it’s impossible, no denunciation of its existence can penetrate, and no correction made.

Then come the final arguments of the lawyers. France2’s go first. Maitre Amblard, true to past performances, shuffles papers as her thin, reedy voice stumbles over arguments as insubstantial as they are predictable. Nonetheless she reads extensively from the testimony of witnesses, including the ambulance driver who evacuated the al Durahs and recounts scooping up the poor boy’s guts. (Note, all this took place while, alas, Talal, the only one present of two dozen cameramen there that day, was changing his battery.)

It is only when we get to Maitre Szpiner that we get something with gusto and force. Szpiner has, throughout the afternoon, showed exceptional self-confidence, interrupting with his powerful low voice that carries throughout the room, making snide, sarcastic remarks that occasionally draw reproach from the judge but faze him not the slightest. “Forgive me, I’m not a good boy (sage),” he remarks with a smile after one of the Judge’s rebuke.

When it’s finally his turn, he turns up the volume and booms out his summation. Karsenty, he claims, is a “bitter combination of [the Holocaust denier Robert] Faurisson and [the 9-11 conspiracist] Thierry Meyssan.” Members of the audience, stunned by such a comparison, hiss loudly. Undeterred, Szpiner continues his attack: the author of the graphological examination of the handwritten testimonials from Gaza discerns an “Oriental” handwriting – how bizarre. Still worse, Nahum Shahaf, the physicist, has taken mannequins and put on black face… why? Because, like many Israelis, he considers the Palestinian Arabs to be “des nègres.”

Some in the audience again hiss disapproval, prompting Szpiner to ask the judge to rebuke them. She does so, without taking the occasion to ask Szpiner to address substance and stop with innuendo. And, accordingly, he finishes his summary without once addressing matters of substance. He even mocks the ballistic report for concluding that there are “serious possibilities” that the scene was staged. His is a masterpiece of the triumph of sarcastic rhetoric over serious substance which draws at least as many laughs as it does boos. During the break, I ask a woman smoking outside what she thinks. “Oh I thought his speech was marvelous, brilliant. Even one of the judges was smiling.” “And Karsenty’s presentation?” I ask. “Oh, it was a joke,” she replies. I guess we see what we want.

We return to the court and Judge Trébucq then turns to Karsenty’s lawyers to present their case. “Wait,” intervenes the avocat général, “it’s my turn to present.” A soft-spoken elderly gentleman whom the judge must repeatedly ask to raise his voice, he quietly but firmly, sides with France2 and accuses Karsenty of failing to meet the criteria for dismissal. In many ways it is a rehash of the first court decision, which, he concludes, the appeals court should uphold. Has Karsenty done a serious investigation? No. Although his sources are multiple (the original decision argued that they were all one), since they all agree, it’s the equivalent of a single source. Did he use serious and prudent language in his criticism? No, works like superchérie, imposture, masquarade are “devalorizing and pejorative.” Has he shown good faith? No, he seems driven by animus against Enderlin.

It seems quite striking that in a courtroom where for the last seven hours we’ve witnessed extensive, serious, and informed argument on Karsenty’s side, and insubstantial and dismissive and excessive rhetoric from France2’s, that here the avocat général would come down against Karsenty for “lack of seriousness and prudence.” Whatever his motives, the consequences of his judgment are heavy. Courts rarely reverse direct advice from these figures (they did in Karsenty’s case), and in Appeals courts, where the natural tendency is to confirm the lower court’s decision, it would have seemed hard to imagine the judges reversing this decision. And this was what I thought initially and reported live by phone PJMedia.

But we have yet to hear from Philippe’s attorneys. They, like Philippe, are well prepared. Maître Delphine Meillet reads a well-researched analysis of how powerful the grip of Palestinian politics on the media, both Palestinian and foreign. She quotes Talal telling an Arab audience, “I went into journalism to carry on my people’s struggle.” She tells the story of the Ramallah lynching and reads from the craven letter of Riccardo Cristiano to Yasar Arafat assuring him that Italy’s public station, RAI, which he heads, would never betray the journalistic rules that govern the media in the PA territories, of not showing the Palestinians in a bad light. She outlines the noxious impact this kind of press intimidation and cooperation has on the ability of the West to know what’s going on. “The victim here is the European public.”

(This issue of press intimidation offers a key answer to the false dichotomy of a press either “vendu” or incompetent in its handling of Pallywood. Cristiano’s open admission of self-censorship points the direction. Terrified of reporting negative things about this political culture, afraid to confront Palestinians by rejecting their fakes, western reporters face a dilemma which they solve by pretending that they are doing the “right thing” in leveling this uneven playing field. If, as Bob Simon says (in reference to the Muhammad al Durah affair), “in the Middle East, a picture is worth a thousand weapons” then journalists can tell themselves they are merely leveling the playing field in a situation where the Israelis have all the weapons. As a result, in all good conscience, they can overlook, even side with and channel Palestinian propaganda. It’s a fine solution: they avoid the anger of the volatile “insurgents,” they “do good” for the oppressed,” and they get good footage to run in the evening news.)

The lead attorney, Maître Patrick Maisonneuve, goes last. Much of the speech addresses the issues raised by the avocat général and Szpiner, on Karsenty’s good faith and extensive and serious work on the problem. He critiques Szpiner’s analogy. “It is grotesque to compare Karsenty’s accusation that a Palestinian cameraman and a handful of collaborators faked a piece of war propaganda with people who claim that the pervasively documented murder of over six million Jews is a propagandistic invention. Thank you, Master Szpiner, who accuse M. Karsenty of having lacked ‘nuance’ for this precious lesson in nuance.”

Indeed, one might take that riposte as emblematic of the trial. At one point, Szpiner criticized Karsenty for his lack of seriousness in referring to a news item that claimed that CNN had turned down Talal’s footage of al Durah because it seemed too problematic to run. “If he had made a simple phone call, he could have found out from the source,” Szpiner boomed. “That would have shown serious research.” (Of course, to try and find out from a huge organization like CNN who made that decision eight years ago is no easy matter.) And yet this same man spins a yarn about Shahaf applying blackface to his Barbie and Ken dolls in order to smear Israelis with racism, when a quick phone call would have revealed that these mannequins were standard Israeli army issue, used to represent anyone, blackface because they don’t show dirt. (After explaining this to me, Shahaf writes, “Who is this idiot lawyer?” Good question.)

Alas, in France, style often trumps content: as Szpiner performs with gusto, the adjunct judges smile. As one observer at the trial put their attitude, “Finalement, il est génial cet avocat. [This guy’s awesome!]” And I confess, that in a moment of dejection I gave a gloomy report to Roger Simon. But further discussions with others, better acquainted with the workings of French justice suggest I may have jumped the gun.

Signs indicate, for example, that Judge Trébucq is considerably more sophisticated than her co-judges, and she is aware of these glaring disparities. Despite her sharp questioning of Karsenty, she rebuked both Enderlin and Chabot outright for “distorting” Karsenty’s argument, for not answering the challenges of the evidence. At a couple of points she even made procedural slips one might consider Freudian: turning to Enderlin when she should have turned to Karsenty, she addressed him as the accused, and when she should have turned to the avocat général for his opinion, she skipped him and went straight to Karsenty’s lawyers for their statement. A number of the lawyers present felt that Karsenty’s presentation had stunned the court and made a deep impression on Judge Trébucq, who has accorded this case exceptional care and attention and engaged in unusual procedures (e.g., viewing the rushes). This case is nothing, if not exceptional.

She has given her court a long period decide, and hopefully, for study. It would take a moment, but a close look at the Talal’s shot of the barrel after the evacuation (18:09), to realize that testimony of the ambulance driver that he had to scoop up al Durah’s guts from the pavement was a fabrication. Like other eyewitnesses whose testimony France2 provided to the court, who saw helicopter gunships shooting Palestinians from the sky, this is part of the lethal narrative of Pallywood. If indeed the boy’s guts had spilled out (a detail Le Monde dutifully included in its brief report), there would have been a river of blood on the sidewalk. And yet, France2’s own rushes, taken immediately after the ambulance evacuation, show no trace of blood.

Does she have the intellectual and emotional fortitude not to fall victim of this pornography of suffering that Pallywood’s greatest icon has managed to spread around the world?

There is no way of knowing how the decision will come down. If Karsenty loses, it will be the victory of form over content, of an easy rhetoric of contempt over a serious and substantive analysis of deeply troubling behavior, of institutional prestige over individual right to criticism. After all, the court does not need to decide if the scene was staged, but if at the time he wrote the article, Karsenty had sufficient evidence to legitimately express that opinion. That, to this American, is something of a no brainer. But in the overheated atmosphere of Europe in the early 21st century, rife with a rhetoric of demonization and dismissal, in a country where a Philosemitic Protestant can be found guilty of anti-Semitism for publishing at his website an article by one Jew (Stephane Juffa) that criticizes another Jew (Charles Enderlin), it’s hard to imagine how anyone could focus clearly on the relevant issues. To paraphrase Groucho Marx’s famous query, “Are you going to believe France2 or your own lying eyes?”

And in all this confusion, where are the Israelis? Why can’t they find a voice that at once defends their honor, and helps outsiders understand the dynamics of terror that dominate this young and troubled century, terror’s systematic exploitation of a Western media too weak to resist their violent blandishments and too proud to admit error. Said one observer, “Even Charles’ friends admit that not only does it look like he made a huge mistake, but he’s much too proud to admit it.”

A public institution’s wounded pride or a people’s reputation? One heard precisely such calculus about a century ago in Paris.

But in the end, as with Dreyfus, the truth will out. As Maisonneuve, Karsenty’s lawyer put it: “After examining the evidence there is no alternative but to conclude that it was staged.” Occam’s razor here makes any alternative a Rube Goldberg machine – impossibly elaborate and exceedingly unlikely. So whatever French justice decides, as Sherlock Holmes would say, “the game is afoot.”

And for that we can thank Enderlin’s hubris in accusing Karsenty for “attacking his honor and estimation,” and Karsenty’s tenacity in fighting the array of institutional networks militating against letting the French and world public know just how bad and dangerous media mistakes and their denial can be.

© Augean Stables 

Mis en ligne le 06 mars 2008, par M. Macina, sur le site upjf.org